TN 1 (06-14)

PR 02805.020 Kentucky

A. PR 14-084 Authority of Commonwealth of Kentucky to Change a Foreign-born Individual’s Date of Birth through a State Court Order

DATE: April 30, 2014

1. SYLLABUS

Accept a date of birth determination shown on a U.S. State-issued court order or Certificate of Foreign Birth issued by the State of Kentucky as evidence to either establish or change an individual’s date of birth in our Numident record if the individual is a foreign born adopted child.

2. OPINION

QUESTION

For purposes of processing Social Security Number (SSN) applications affected by the Accuracy for Adoptees Act, you asked 1 whether the Commonwealth of Kentucky (Kentucky) has the authority to change a foreign-born individual’s date of birth through a court order.

OPINION

Although we found no legal authority specifically allowing Kentucky to change a foreign-born individual’s date of birth through a court order, Kentucky law grants Kentucky circuit courts the authority, after investigation and hearing, to make findings of fact that differ from the underlying evidence. Findings of fact would include a child’s date of birth.

BACKGROUND

According to the information provided, the City Government of Addis Ababa, Ethiopia, issued a birth certificate on March , indicating Social Security Number Applicant Timothy (Applicant) was born on August, in Mendeda, Ethiopia. The Ethiopian birth certificate shows Timothy and Julianna to be Applicant’s adoptive parents. On July 30, 2013, the United States Government issued a Certificate of Citizenship to Applicant, indicating he became a citizen of the United States of America on May 18, 2013. The Certificate of Citizenship shows Applicant’s date of birth as August. On February 11, 2014, a Family Court Judge from the Hardin Circuit Court, Kentucky, issued a Judgment of Adoption ordering that Applicant (now named Ethan ), would be deemed the child of the petitioners Timothy and Julianna , and that his date of birth is August. The clerk of the court entered the judgment on February 13, 2014. On February 28, 2014, the Kentucky Department of Public Health, Registrar of Vital Statistics, issued a Record of Foreign Birth for Applicant, indicating his date of birth as August. The Record of Foreign Birth lists the supporting evidence as the Hardin Circuit Court judgment entered on February 13, 2014.

On some unknown date, Timothy and Julianna, residents of Kentucky, applied for an original Social Security Number (SSN) card for Applicant, indicating his date of birth as reflected on his Record of Foreign Birth.

ANALYSIS

DISCUSSION

Social Security regulations provide that an applicant for an original SSN card must submit documentary evidence that the Commissioner of Social Security regards as convincing evidence of, inter alia, age. See 20 C.F.R. § 422.107(a), (b) (2014); Program Operations Manual System (POMS) RM 10210.010. Examples of the types of evidence that an applicant my submit to establish age are a birth certificate, a religious record showing age or date of birth, or a passport. See 20 C.F.R § 422.107(b); see also 20 C.F.R. § 404.716 (2014) (stating the best evidence of age is a birth certificate); POMS RM 10210.265 (listing kinds of documents that establish age for an SSN card). The Accuracy for Adoptees Act requires Federal agencies to accept U.S. issued documents as evidence of date of birth for foreign-born adoptees who are adopted by a U.S. citizen parent. See Pub. L. No. 113-74, 127 Stat. 1212, amending Section 320 of the Immigration and Nationality Act, 8 U.S.C. § 1431. Acceptable documents include a State court order, birth certificate, certificate of foreign birth, certificate of birth abroad, or similar State vital records document issued by the child’s State of residence in the United States after the child has been adopted. See id.

SSA has issued instructions for processing SSN applications affected by the Accuracy of Adoptees Act. See EM-~ – Enumeration: Processing Name and Date of Birth Determinations for Foreign-Born Adopted Children under the Accuracy for Adoptees Act – One Time Only Instructions. These instructions provide that where a document issued by a State is presented as evidence to establish a date of birth different from what is shown on the child’s evidence of age document, as is the case here, the following determinations must be made:

  • whether the State has the authority under State law to change a foreign-born individual’s date of birth through a court order;

  • the State legal requirements to change a date of birth;

  • whether the court order needs to list the supporting documentation of the change of date of birth on the State court order;

  • if the State has the authority to change a date of birth, the documents the State issues as proof of the change of date of birth; and

  • whether the State issues a Certificate of Foreign Birth, Certificate of Birth Abroad, or other Bureau of Vital Statistics (BVS) document as proof of change of date of birth. If the State issues the document under a different title, identify the name of the document.

See id. We looked to Kentucky law to address the questions above because the court judgment changing Applicant’s date of birth was issued by a Kentucky circuit court. We found no Kentucky statute, regulation, or court decision that gives the court the specific authority to change a foreign-born individual’s date of birth on a court order or that establishes the legal requirements for making such a change. However, Kentucky law grants Kentucky circuit courts the authority to order an adoption where one or more of the facts stated in a petition for adoption, has not been definitively determined, if it is in the best interests of the child.

Kentucky will recognize a decree, judgment, or final order of adoption issued by a court or other governmental authority with appropriate jurisdiction in a foreign country when the child to be adopted has been approved for United States citizenship. See Ky. Rev. Stat. Ann § 199.585(1) (West 2014). In the absence of such decree, judgment, or final order, as is the case here, persons wishing to adopt a child must file a petition for adoption in the circuit court. See Ky. Rev. Stat. Ann. §§ 199.470(1), 199.585(3). The adoption petition must allege, inter alia, the name, date of birth, place of birth, place of residence, and mailing address of the child sought to be adopted. See Ky. Rev. Stat. Ann. § 199.490(1)(b) (West 2014). The Judgment of Adoption for Applicant reflects that Timothy and Julianna filed such a petition.

We do not have a copy of the petition to determine which date of birth was alleged for Applicant. Nevertheless, the court addressing a petition for adoption may make findings of fact that differ from those alleged in the petition. After the adoption petition has been filed, the Cabinet for Health and Family Services (or any person, agency, or institution designated by it or the court) will conduct an investigation and report to the court whether the contents of the petition are true; whether the proposed adoptive parents are financially able and morally fit to have the care, custody and training of the child; and whether the adoption is in the best interests of the child, and the child is suitable for adoption. See Ky. Rev. Stat. Ann § 199.510(1)(a)-(c) (West 2014). The reliability of the report is a matter within the competence of a qualified trial judge to weigh and determine. See Warner v. Ward, 401 S.W. 2d 62, 64 (Ky. 1966). Moreover, the court, upon its own motion or upon the request of any interested party, may conduct an independent hearing after receiving the investigative report. See Ky. Rev. Stat. Ann. § 199.515 (West 2014); Baker v. Webb, 127 S.W. 3d 622, 626 (Ky. 2004); see also Keeling v. Minton, 339 S.W. 2d 464, 465 (Ky. 1960) (holding that court may conduct a hearing as its method of investigation without a report from an investigating agency). The court may take evidence and make its own findings based on the evidence before it. See B~, 127 S.W. 3d at 626. The court may allow the adoption even if one or more of the facts stated in the petition do not exist as long as the court is of the opinion that the welfare of the child will be served by the adoption. See Dickey v. Boxley, 481 S.W. 2d 283, 285 (Ky. 1972). Here, the Judgment of Adoption reflects the court held such a hearing and made findings of fact, including findings regarding Applicant’s birth date. Consequently, we find authority for a Kentucky court, after holding a hearing and taking evidence, to make a finding of fact regarding an adopted child’s date of birth that may differ from the date of birth stated on a foreign birth certificate.

You also asked us to identify the documents the State issues as proof of the change of date of birth and whether the State issues a Certificate of Foreign Birth, Certificate of Birth Abroad, or other Bureau of Vital Statistics (BVS) document as proof of change of date of birth. In Kentucky, after entry of an adoption judgment, the clerk of the circuit court sends a form to the Cabinet for Health and Family Services so that a new birth certificate can be issued for the child. See Ky. Rev. Stat. Ann. § 199.570(2) (West 2014). If the birth occurred in a foreign country and the child was not a citizen of the United States at the time of birth, the state registrar will prepare a record of foreign birth. See Ky. Rev. Stat. Ann. § 213.066 (West 2014) (citing Ky. Rev. Stat. Ann. § 213.056(2) regarding the preparation of a record of foreign birth).

CONCLUSION

While we found no authority that specifically addresses the questions presented, Kentucky statutes and case law provide the circuit courts with the authority, after an investigation and hearing, to approve adoptions and make findings of fact, which includes a child’s date of birth.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By:______________

Elyse Sharfman

Assistant Regional Counsel


Footnotes:

[1]

We have not addressed every one of the requested determinations provided in EM-~ because of the lack of specific authority. Consequently, we have not addressed the specific legal requirements to change a date of birth; whether the court order needs to list the supporting documentation of the change of date of birth on the State court order; or identified the documents the State issues as proof of the change of date of birth.


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PR 02805.020 - Kentucky - 06/02/2014
Batch run: 06/02/2014
Rev:06/02/2014